Hiring or seconding personnel

In divided societies, the hiring process must be inclusive. It is not only the constitution-makers who should be representative of the nation, but also the administrative and management personnel. Such personnel are often the public face of the process. This is especially so when they are involved in civic education or public consultation efforts or in setting up field offices. Because of the important and sensitive roles that staff members play (including assisting with the drafting of the constitution), if a single ethnic or other group dominates the management bodies, there may be charges of bias in the whole constitution-making process.

Minorities, women, and other groups should have equal opportunities to manage and administer the process. Equal-opportunity, gender-sensitive, and diversity policies and procedures should be developed or adopted to guide hiring practices and should be followed in the work environment.

Table 6: Types of positions staffed in a constitution-making process

Staffing of positions

Archivists

Interpreters/translators

Capacity development specialists/trainers

Legal drafters

Catering staff

Legal researchers

Civic educators

Logistics and procurement personnel

Data-entry staff

Managers

Drivers

Media specialists

Electoral specialists

Photographers

Empirical social scientists

Public consultation/deliberation experts

Financial managers

Secretarial staff, including transcribers

Fundraisers

Security officers and guards

Graphic designers

Specialists/librarians

Information personnel

Translators

Information technology experts

Videographers

Foreign advisers/mentors

Website developers

Box 25. Examples of secondments: Timor-Leste [2002]

In Timor-Leste, a media group lent a media relations expert to assist with press conferences and daily communication with the press, and the Asia Foundation hired and managed translators and interpreters to assist the secretariat, which was managing the process. (The secretariat had not planned for these positions and did not have funding for them.)

Careful consideration should also be given to whether public servants should become staff members. Public servants may be aligned with or too easily influenced by the government because of their reliance on the government for their salaries. Parliaments require considerable support in the form of secretarial and administrative assistance, including procurement, drafting, research, record keeping, building management, and security. The same useful skills are often needed to support the constitution-making body. However, in South Africa [1996], the former parliamentary staff members who had worked under apartheid were not trusted by some of the other staff and constitution-makers.

An inclusive hiring panel can interview potential candidates from a less biased perspective. There should be strict rules against nepotism. In many countries, anyone charged with setting up a constitution-making body or process of any type could expect to be inundated with requests for jobs or contracts for relatives, friends, relatives of important people, and so on. Such persons should be chosen in part on the basis of capacity to resist such pressures, and should insist that proper processes are used from the outset. Failure to do so risks compromising the reputation, integrity, and legitimacy of the process. In one instance, the director of a secretariat hired his young and inexperienced cousin as a deputy. The resulting poor execution of many tasks led donors to threaten to cease provision of funds.

All of these considerations underscore the importance of planning the hiring process early and having hiring guidelines and procedures in place, especially for a process that requires a wide range of personnel.

The types and number of personnel will depend on both the availability of funds and the number of specialized tasks that must be carried out. Management will have to determine the qualifications, terms of employment, and levels for each position.

In postconflict situations especially, a large proportion of the country’s skilled professionals may have fled. Drawing members of the diaspora back to support the process can help inject needed expertise. Yet overreliance on returnees can create tensions, as local people who remained during the conflict may resent the diaspora members returning to take up important positions just as peace is taking hold.

Professional “headhunters” have been used to find appropriately skilled personnel. Civil society, academia, the media, and the private sector have also lent personnel to the process, and public service staff members have been seconded.

Employees, seconded personnel, and consultants

An official process will probably have to operate within existing national procedures for the recruitment and terms of service of staff. In many systems there might be three basic categories of staff.

An employee is someone who is under contract to work for the particular body, and paid a salary, usually a certain amount each week or month. Such an employee will probably have a contract for a fixed length of time—often with the possibility of premature termination by either side. There may be provision for some sort of benefit for an employee who works for a certain length of time. In the case of a short-lived body, this is likely to be a lump sum rather than a pension system.

A person may be seconded, usually from another government agency. Such a person would likely continue to receive the same pay and other benefits as in his or her regular job, though sometimes the person would receive some extra benefit during the period of secondment.

A consultant is someone who receives either a lump sum to do a particular piece of work, or a certain amount a day, perhaps for a limited number of days in a period. A consultancy contract is more likely to be used for a specific expert for a specific project, though it is sometimes used for people doing less specific tasks. Often a consultant will be required to produce one or more “deliverables”—reports, drafts, and so on, before being entitled to payment.

When deciding on the relevant basis for employing staff, the constitution-making body might wish to take into account factors such as:

will the staff member count as an “employee” for the purposes of the local law of employment, including liability of the body for accidents they might have, or even liability for their breaches of the law?

would certain types of arrangement have cost implications for travel, insurance, health, housing?

would a person seconded potentially have some kind of conflict of interest (for example, if they regularly work for parliament would they have an interest in certain provisions getting into the constitution)?

relationships between employees, especially resentments that may be created by marked differences between people doing similar work.

Accountability of personnel

Unfortunately, in countries where corruption is a significant issue (though hardly anywhere is

it not a problem at all), constitution-making processes are not immune. If “corruption” means allowing personal interest to conflict with one’s responsibilities (that is, excluding purely political interference), the following are examples of the problem:

obstructing work (perhaps by not turning up, or unnecessarily prolonging debate) in order to benefit more from salaries and allowances;

engaging in procurement scams, such as issuing purchase orders for goods that are not intended to be delivered (at the time of the constitution-making process in Uganda, this form of corruption was known as “air supply,” and there was at least one elaborate scam of this kind that caused major problems for the Uganda Constitutional Commission when the commission discovered it), or services that are not rendered or not rendered in full, or for which the price is inflated (airtime offers an easy example, as it is hard for auditors to check how many minutes of purchased airtime have been used);

employing, or secretly facilitating the employment of, one’s relatives and associates or their businesses (in one instance, commissioners employed their own relatives as drivers, insisting on having them paid through the commissioners, and then pocketing—stealing—some of the money); and

taking bribes to vote in a certain way.

How can this be handled? Other than insisting on background checks before people are appointed or hired, some possibilities are:

having and enforcing a code of conduct (see appendix C);

not permitting people whose job it is to draft a constitution to be involved in management activities that involve hiring or procurement;

asking for extra official audits;

insisting that existing procurement procedures be used;

using a private accounting firm to control certain activities (such as procurement);

being creative in checking on whether goods and services have been provided (insisting on seeing the stacks of photocopy paper; asking commercial companies that track media how many of your advertisements have indeed appeared); and